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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2014 LR November
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CONTENTS

Digest Topics
Assault and Battery: Physical
Assault and Battery: Handcuffs
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use (2 cases)
First Amendment (2 cases)
Public Protection: Intoxicated Persons
Search and Seizure: Home/Business
Search and Seizure: Vehicle

Resources

Cross References


AELE Seminars

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2014 Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues
Jan. 12-15, 2015 -- Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     A woman claimed that a deputy sheriff subjected her to an unreasonable seizure and used excessive force at a courthouse security checkpoint. Overturning summary judgment on her federal civil rights claims, the appeals court ruled that the trial judge erroneously applied a substantive due process/shocks the conscience legal standard rather than the Fourth Amendment's objective reasonableness standard. The defendant deputy was, however, entitled to official immunity on Georgia state law claims. West v. Davis, #13-14805, 2014 U.S. App. Lexis 17319 (11th Cir.).

Assault and Battery: Handcuffs

****Editor's Case Alert****

     An arrestee stated a viable claim for excessive force. If, as he claimed, his head was slammed against the pavement with extreme force after he was handcuffed and was lying prone on the ground, the force used would have been excessive, disproportionate, and unnecessary. This would be the case even if he did lift his head off the hot pavement. Officers were not entitled to qualified immunity, as it was clearly established that a handcuffed, non-resisting arrestee had a right to be free from excessive force. Saunders v. Duke, #12-11401, 2014 U.S. App. Lexis 17334 (11th Cir.).

False Arrest/Imprisonment: No Warrant

     Officers arrested everyone at a party at a residence for unlawful entry, based on the fact that the host had not finalized a rental agreement to live there, and therefore had no right to hold a party there. A federal appeals court ruled that there was no probable cause for the arrest in light of the undisputed fact that at the time of the arrests the officers knew that the guests had been invited there by a woman they reasonably believed to be a lawful resident. There also was no probable cause for a disorderly conduct arrest, as there was no evidence of any disturbance of sufficient magnitude to violate local law. Because a supervising sergeant on the scene overstepped clear law by directing that the arrests be made, the District of Columbia was liable for negligent supervision. Wesby v. D.C., #12-7127, 2014 U.S. App. Lexis 16893 (D.C. Cir.).

Firearms Related: Intentional Use

     Police officers acted in an objectively reasonable manner when they shot and killed a man, who repeatedly ignored orders to drop a gun he was holding. No evidence contradicted the testimony that many officers present perceived that the decedent posed an immediate threat of serious physical harm to them. The appeals court rejected the argument that the trial court erroneously "disregarded" news helicopter video footage of the incident, finding that the video was viewed but was deemed not to be that helpful in determining objective reasonableness from the perspective of an officer on the ground. At most, the video might have supported an inference that the decedent intended to surrender, but the fact remain that he had refused repeated prior demands to drop his gun. Aipperspach v. McInerney, #13-2942, 2014 U.S. App. Lexis 17201 (8th Cir.).

     Because of genuine disputed issues of material fact, a Texas state trooper who shot and killed a driver during a high-speed chase was not entitled to qualified immunity as a matter of law. At the time the driver was shot from a bridge in his approaching vehicle, the risk posed by his flight was disputed. Based on the evidence, a reasonable jury could conclude that he did not pose a substantial and immediate risk, since traffic on the divided highway at the time was light, non-lethal methods of stopping him that had already been prepared were not given a chance to work, and there were no pedestrians, businesses, or residences along the highway there. The fact that the driver had previously threatened to shoot the officers did not establish that he posed an immediate risk at the time that he was shot. Luna v. Texas Dept. of Public Safety, #13-10899, 2014 U.S. App. Lexis 16785 (5th Cir.).

First Amendment

****Editor's Case Alert****

     A mass arrest of 700 Occupy Wall Street demonstrators was made after they walked onto a bridge roadway. The arrestees claimed that this violated their First, Fourth, and Fourteenth Amendment rights. The officers were not entitled to qualified immunity. The plaintiffs alleged that the officers directed their activity along the route that led to them entering the bridge. If the facts were as alleged, no reasonable officer could have believed that the warning to clear the roadway was sufficiently audible for the crowd to hear it. Further, the demonstrators alleged that the officers had retreated onto the bridge in a manner that could be reasonably understood to constitute a continuation of the officers' earlier practice of allowing the demonstrators to proceed in violation of traffic laws. Garcia v. Does, #12-2634, 2014 U.S. App. Lexis 16156 (2nd Cir.).

     An annual Arab International Festival, drawing as many as 250,000 people was hosted in a Michigan city. Preparing for the 2012 event, a Christian group that had been involved in some confrontations there the year before with those objecting to their Christian signs, banners, and t-shirts, had their attorney send a letter to the county. He complained that the sheriff had sided with "violent Muslims" in attendance, and demanded protection at the upcomong festival, claiming that officers had a duty to protect speakers from "hostile audiences." The county's lawyer responding, saying that the county only had a general duty to the public and was not required to have sheriff's personnel serve as a security force for the sole benefit of the Christian group. At the 2012 festival, the Christian group, known as Bible Believers, displayer anti-Islam messages such as "Islam is a Religion of Blood and Murder," while one of its members carried a severed pig's head on a stick, and others used a megaphone to preach about a "pedophile" prophet. Bystanders in the crowd threw debris, yelled, and shoved a Believer to the ground.

     Officers detained some debris-throwers and tried the stop the disturbance. As the Believers continued to preach, the disturbance grew, and the officers escorted the Believers out, concerned for their safety. The officers' actions did not violate the Believers group's First Amendment rights. The security plan for the festival was content neutral, and the plaintiffs were not treated differently than the counter-protestors in the crowd. Threats to cite members of the Believers if they did not leave did not violate free speech, as they were allowed to speak until the possibility of violence and physical injury became too great. Bible Believers v. Wayne Cnty, #13-1635, 2014 U.S. App. Lexis 16533, 2014 Fed. App. 0208P (6th Cir.).

Public Protection: Intoxicated Persons

     A man asked officers to give him a ride to his sister's house in the next county because he was intoxicated. Instead, they left him at an isolated off-ramp at the county line, which was at the edge of their jurisdiction. They told him to seek help at a factory nearby, but he went a half mile in the opposite direction in the freezing cold and died of hypothermia. The officers were properly granted qualified immunity on a failure to protect due process claim. The man accepted a ride from the officers and was sober enough to rationally make that decision. There was no custodial relationship. Claims against the police department failed as there was no evidence that it was a departmental custom to give rides to persons in its jurisdiction and there was no affirmative duty of care. Arkansas state law wrongful death and related claims were also properly dismissed. Gladden, Jr. v. Richbourg, #12-3918, 759 F.3d 960 (8th Cir.).

Search and Seizure: Home/Business

     A woman owned a property that she operated as an animal shelter until an ASPCA investigation led to a search of that property, her firing as the county dogcatcher, and her being sentenced for animal neglect. The ASPCA investigator, although a private party, was able under state law to obtain a warrant to search the property, and it directed officers to enlist veterinarians or other persons or agencies authorized by the county prosecutor to assist in the search. Deputy sheriffs entering the property were accompanied by 40-50 undeputized animal rights volunteers who actually carried out the search, with the deputies just there to keep the peace. A federal appeals court upheld an award of damages in a lawsuit claiming unreasonable search and negligence in failing to adequately train or supervise the amateur searchers, resulting in needless property damage. The "incompetence of the amateur searchers is apparent from the reports of the deputy sheriffs," the court noted. Petkus v. Richland County, #13-3700, 2014 U.S. App. Lexis 16054 (7th Cir.).

Search and Seizure: Vehicle

     Commercial fishers driving on a public highway in an auto were stopped by officers from the Washington Department of Fish and Wildlife to check for violations of fish and game laws. None were found during the inspection. In a lawsuit, the fishers claimed that the stop and search of their vehicles violated their rights and that officers from the Department had harassed them over the years. A federal appeals court found that the officers were not entitled to qualified immunity as the law on suspicionless warrantless searches was clearly established. The search lacked any suspicion of unlawful conduct or any statutory authority making the search permissible under an administrative search exception to the warrant requirement. A substantive due process claim, however, was time barred under the applicable statute of limitations. Tarabochia v. Adkins, #11-35837, 2014 U.S. App. Lexis 17422 (9th Cir.).

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AELE Seminars

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2014 Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues
Jan. 12-15, 2015 -- Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Body Cameras: AELE has a new webpage on police body-cam information, which will be periodically updated.

     Firearms Related: Police Responses in Officer-Involved Violent Deaths: Comparison of Suicide by Cop and Non-Suicide by Cop Incidents, by Vivian B. Lord, 17 Police Quarterly (Sage) 79-100 (March 2014). Abstract.

     Search and Seizure: Stop-and-Frisk During the Bloomberg Administration 2002-2013 (2014), New York ACLU (Aug. 2014).

  Reference:

Cross References
Assault and Battery: Physical -- See also, Assault and Battery: Handcuffs
Dogs -- See also, Search and Seizure: Home/Business
False Arrest/Imprisonment: No Warrant -- See also, First Amendment (1st case)
Negligent or Inadequate Supervision -- See also, False Arrest/Imprisonment: No Warrant
Pursuits: Law Enforcement -- See also, Firearms Related: Intentional Use (2nd case)
Search and Seizure: Person -- See also, Assault and Battery: Physical

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